When Clara Foltz began studying to become a lawyer in the late 1860s, she was trying to feed her five children. Foltz’s husband had run off, and she’d turned in succession to teaching, sewing and taking in boarders, but none of it brought in much income. Hoping for better, she studied law with the help of her father, who was an attorney in San Jose. Foltz needed his aid because the top lawyer in town refused to take her on, calling her ambition a “foolish pursuit” that would bring “ridicule if not contempt.”
California in those days had no rules about what aspiring lawyers had to study or for how long — the state merely required residency for six months. Plus male anatomy. Lacking that, Foltz had to beg. “I coaxed, I entreated,” she said of her lobbying of the California legislature. “I almost went down on my knees before them asking for the pitiful privilege of an equal chance to earn an honest living in a noble profession.”
A bill to admit women to the state bar squeaked through the legislature in 1878, by a vote of 37 to 35. As Jill Norgren tells it in “Rebels at the Bar,” her conscientious history of the country’s first female lawyers, Foltz then “virtually flung herself at the governor, called out the number of the bill, and held her breath until he signed it into law.” California joined only Wisconsin and the District of Columbia in allowing qualified women to practice law.
In one sense, Foltz and her fellow pioneers were asking to take the essentially conservative step of joining a middlebrow profession that primarily offered the prospect of financial gain. But the simple fact of their sex meant, of course, that they could not become lawyers without provoking broader change. It’s a lesson that also applies to the drive today to legalize same-sex marriage. Gay couples who want to get married are claiming the conventional mantle of the institution — they want the same rights as straight couples — while at the same time, of course, remaking marriage in their own image. Female lawyers once did the same. Sometimes, it takes a social revolution to change the box to be checked on a form from “male” to “female” (or vice versa).
Foltz, who is also the subject of an excellent biography by Stanford law professor Barbara Babcock, went on to petition for curtailing husbands’ power over property acquired during marriage and for granting women the right to vote. She also argued for the first parole board, created in California in 1893, and for a constitutional right to counsel for criminal defendants — “an entirely new and original solution,” as Norgren writes, which the Supreme Court adopted many decades later in Gideon v. Wainwright (which turned 50 years old this spring).
Foltz is one of eight barrier-breaking women Norgren profiles. The collection allows her to showcase the women’s variety; they followed no common script in terms of upbringing or marriage. While Foltz had a deadbeat husband and supportive parents, Belva Lockwood’s father refused her request to go back to school at 18, after she spent four years as a rural teacher. It was her second husband who stood by her while she waged a long struggle for a legal education, culminating in a sharp letter to President Ulysses S. Grant, the nominal president of her university, demanding the diploma she was denied after completing her courses. Later, as a widow, Lockwood fought another years-long battle, this time with Congress, to become the first woman admitted to the U.S. Supreme Court bar. (She was also the first woman to ride a bicycle around the capital, a bit of daring that prompted President Grover Cleveland to instruct the wives of his Cabinet officers not to follow her example.)